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CONTESTED
DIVORCE
"I've separated from my spouse
but we don't agree on everything."
You and your spouse need to have an agreement or a court order that deals with these 4 main areas before you can get an order for divorce:
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Division of property and debt
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Spousal support
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Child support
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Guardianship and parenting time (or child custody)
*The process for resolving some or all of these 4 areas in court is called a contested divorce.
THE
PROCESS
In a contested divorce, one of the spouses starts a family law action by filing and serving a Notice of Family Claim on the other spouse. The Notice of Claim is the court document that is used to set out all of the details that the court needs to know, as well as a detailed listing of how that spouse (called the Claimant) wants to deal with the division of property, support claims, and parenting time (if applicable). Once the Claimant has filed and served the Notice of Claim on the other spouse, that spouse (called the Respondent) must file and serve a court document called the Response to Family Claim. The Respondent will indicate in the Response to Family Claim whether they agree or disagree with any of the orders the Claimant has asked for. The Respondent may also file and serve a Counterclaim, which allows them to ask for their own orders in any of the 4 areas.
In a contested divorce, sometimes the spouses have agreed upon some of the issues within the 4 main areas.
Whatever the spouse's positions are going into the family law action, the spouses should each try to resolve the contested issues outside of court. Both the Divorce Act and the Family Law Act require spouses to try their best to settle these issues. In fact, the vast majority of family law cases settle before trial. Family lawyers also have a duty under the Divorce Act and the Family Law Act to help their clients reach an agreement outside of court.
SETTLING
OUTSIDE
COURT
Whether you have already reached an agreement on some issues with your spouse or not, you should ask your lawyer about the options to reach a settlement outside of court. Some of the options to settle outside of court are to negotiate with your spouse before starting court action, either on your own or with the assistance of lawyers. Mediation is another tool with a high success rate to reach an agreement on all of the issues.
Mediation can also be done with or without lawyers.
If you are not able to negotiate or mediate before a court action is started, you can still use these tools at any time before a trial. Whichever option you choose, it is important to find out what your legal rights and obligations are before reaching a settlement. If you or your spouse are unaware of some of the rights and obligations and reach an agreement, you risk having that agreement set aside in the future for a variety of different reasons.
OPTIONS
TO REDUCE LEGAL FEES
Sometimes spouses are not able to resolve their issues through mediation. In this case, they will proceed to trial to argue their cases in front of the court and a judge will decide for them. Family court trials are very expensive, stressful, and time-consuming.
Family court trials are very expensive, stressful, and time-consuming.
Don't be afraid to ask your lawyer for options to make your legal fees as cost-effective as possible. If you choose to represent yourself in your trial, lawyers who offer unbundled services and legal coaching can help you save time and be effective while costing you far less in fees than a full-representation lawyer.
Note: if you are not legally married but have lived common law for over 2 years before separating from your spouse, you may use the same court procedure as a contested divorce. The only difference is that you do not need to ask the court for an order for divorce.
For more information on contested divorce, please contact us to book a free consultation to discuss your case.